Private Law of the Baltic Provinces as a Patriotic Act

• Author: Marju Luts
• Pages: 157-167

Marju Luts

Private Law of the Baltic Provinces as a Patriotic Act

1. The Baltic Private Law Code - a Unique Legislative Step in the Legal History of the Baltic Provinces

The Russian autocrat Alexander II granted an imperial confirmation to the Private Law Codification of the Baltic provinces ¹ which entered into force on 1 January 1865. ² This was an extraordinary event, compared to the history of the private law of the German population of Estland, Livland and Curland. ³ For the first time, the private law regulations of all the three provinces had been assembled in one code.

During the former period, their private law had remained dispersed in various sources which dated also from various periods of political subjugation. In the 13^th-16^th century, the territories of the German state were a part of the Holy Roman Empire; the dioceses were directly accountable to Vatican. In the middle of the 16^th century, Livland and Curland as relatively independent units were annexed by Poland, whilst Estland or present-day northern Estonia became Swedish. During the first half of the 17^th century, Sweden also conquered the territory of Livland. Curland managed to maintain its status of an independent duchy as a Polish province. In the course of the Great Northern War, Russia conquered Estland and Livland in 1710 and attached them as autonomous provinces to the Russian Empire. At the end of the 18^th century, Curland became a part of Russia as well. ⁴

Each time, the transfer of the ownership had been confirmed with particular surrender treaties, or acts of surrender. From the perspective of legal development it is of major importance that these acts always confirmed the continuing validity of the legislation already in force. Thus, even in the middle of the 19^th century, medieval law books, privileges, records of chivalric law, etc. had to be treated as sources of applicable private law on these territories. However, various rulers had still attempted to interfere with the moulding of provincial law in a legislative manner. The result was a conglomerate of legal sources of various origin and nature and the provisions contained therein. In 1822, C. C. Dabelow, the then Professor of the Faculty of Law of the University of Tartu described the local provincial law as a stockpot in which everyone could find something suitable as they saw fit. ⁵ Decades later, no significant changes had occurred. In 1841, Professor C. O. von Madai opined that there could hardly be a country where various types of legal sources combined such a plexus as in the Baltic Provinces. ⁶

Nobody had ever taken time to scientifically study this topsy-turvy system before the 19^th century. During the Swedish era, in 1632, a university was opened in Tartu including a Faculty of Law. ⁷ Only Roman law and, to a lesser degree, Swedish law and natural law were taught there. The actual local law was left intact by the contemporary professors. During the Great Northern War, in 1710, the Swedish university was discontinued. Attempts to reopen the university in the 18^th century remained fruitless. ⁸ The university of Tartu (Dorpat) was only reopened in 1802. With regard to administrative control and financing, it was an imperial university. ⁹ With regard to the language of study, as well as the internal structure of the university, it was, however, a German Landesuniversität for the Baltic provinces. ¹⁰ At the beginning, as many as three chairs of local law were established in the Faculty of Law - one for the law of each province. ¹¹ However, with the Statutes of the University dating from 1820, they were united into an integrated chair of "theoretical and practical provincial law of Curland, Livland and Estland".

The first professor was elected to the faculty of integrated provincial law as late as in 1831. ¹² That was Friedrich Georg von Bunge (1802-1897), who later compiled the BPLC. ¹³ In his programmatic article on the scientific approach to the local provincial jurisprudence, published in 1822, C. C. Dabelow predicted eternal fame to the pathfinder of this field both at home and abroad. ¹⁴ His student Bunge is regarded as the founder of the local provincial jurisprudence. This work was crowned by the codification of local private law. As Bunge proceeded from the same principles in his activities both as a scholar and a codifier, his scientific programme and the problems related to its application need to be examined in greater detail.

2. F G. von Bunge's Point of Departure upon Scientific and Legal Treatment of Local Private Law

Before proceeding with a more detailed analysis of Bunge's provincial law concept, I have to point out one generally acknowledged opinion in research to date. This is manifested in the belief that Bunge developed his approach to provincial law according to the historical school of F. C. von Savigny and K. F. Eichhorn. E. Landsberg, who compiled the most comprehensive review of German jurisprudence in the 18^th-19^th century, called Bunge the man who transferred the methods of the historical school to the far edge of German culture. At the same time, Bunge could discuss the law of the Baltic provinces in vivid relation with German law and its historical development. ¹⁵ Landsberg also called the Baltic Private Law Code, compiled by Bunge, "the most glorious victory of historical-germanic German jurisprudence". Landsberg compared this to the achievements of J. C. Bluntschli in compiling the civil code of Zurich on the basis of the methods of the historical school. ¹⁶ Estonian legal historians have also assumed up to this point that when now analysing the rights of local provinces, Bunge proceeded from the methods of the historical school. ¹⁷ Thus, Bunge has been proven to be famous both locally and internationally for his use of the methods of the historical school in his scientific treatment of the local private law regulations in the Baltic provinces of Estland, Livland and Curland. As he was also the founder of this branch of research, it must signify that the Baltic-German jurisprudence established by Bunge was in the wake of the most modern contemporary legal school from the very beginning.

Such treatment was facilitated, if not established, primarily by Bunge himself. In an autobiography published in 1891, he claimed that he had got hold of Savigny's About the Call of our Era to Legislation and Jurisprudence in about 1830-1831. ¹⁸ The reading of this work had reportedly evoked in him an awareness and a scientific transformation "into an eager disciple of the historical school". ¹⁹ Prior to that, he had been excessively influenced by the practical and strictly deductive-logical approach of his teacher Dabelow to law and jurisprudence. However, Bunge was not too accurate when he extended Dabelow's generally practical and formal logical approach to his attitude to the scientific treatment of the law of the local provinces. Dabelow splendidly recognised the special historical condition of the Baltic provinces and demanded that the local jurisprudence observe the methods of Savigny's historical school. ²⁰

However, this situation was already pre-determined in 1710 when the former Swedish overseas provinces Estland and Livland were attached to the Russian Empire during the Great Northern War. As mentioned above, the merger was formalised with surrender treaties or acts of surrender. The merger of Curland with the Russian Empire in 1795 was also completed through the conclusion of an act of surrender. All the acts of surrender confirmed the continuing validity of the local legal order, privileges, judicature and, among other things, also the "historically developed law". ²¹ In this context, it seems only natural that when a foundation had to be established to the scientific treatment of the local law in the 19^th century, historical research into its sources proved unavoidable. At the same time, the historical school led by F. C. von Savigny was highly valued on the theoretical law market. Moreover, Savigny himself demonstrated how to build of centuries-old legal material, relying on one's own theoretical principles, a modern private law system that conforms to the needs of the industrialising society. It was a thoroughly considered act that Savigny entitled his dogmatic fundamental work as Contemporary (sic!) Roman Law System ²² , not Roman Law System.

As expected, it seems that the professor of the provincial law of the University of Tartu and the later codifier of the local provincial law F. G. Bunge adopted Savignian demands to jurisprudence and legislation in his scientific and legislative activities. In what other reasonable manner would he have been able to shape the law originating from medieval sources into a convenient form for the modernising 19^th century? Moreover, Bunge himself claimed that he became an eager disciple of Savigny and the historical school around 1830, which gave rise to the inconsistencies in the views presented in his earlier and later works.

In 1833, Bunge published his jurisprudent programme How to Shape Legal Condition in Livland, Estland and Curland in Most Efficient Manner. ²³ Following a historical overview of the development of provincial rights by that time, Bunge formulated his views concerning their scientific and subsequent legislative treatment. Doing so, he also had to find a solution to at least two complicated problems arising from the peculiarities of the historical development of local rights. The first may be regarded as an issue of territorial and estate particularism; the second as an...